When Not Driving Is Driving, And When It’s Not Driving

The van driver and the van driver

A rather interesting case was brought to my attention today by @ormondroyd.

Last December, in Durham, Raymond Jenkins left his delivery van parked on the A68 near a bend and such that drivers had to cross double white lines in order to pass it, in order to deliver building supplies to premises which were not accessible by the van.

Ten minutes later, another van driver rounded the bend and ploughed into the back of Jenkins’ van at an estimated 50-60mph. He was killed instantly.

Jenkins was charged with causing death by careless driving, and was found guilty.

Although Jenkins’ defence team argued that this charge was not valid since he had ceased driving ten minutes prior to the collision, this was rejected not only by the judge in the case but also subsequently by three more judges at appeal.

Even leaving aside the severity of this sentence when compared to virtually any incident involving the death of a pedestrian or a cyclist, it begs comparison to one case in particular.

The car driver and the bicycle rider

In August 2011, Sam Harding was cycling along Holloway Road when Keyan Aydogdu opened the door of his car, which had heavily tinted windows, in front of him. Harding’s bicycle made contact with the door and he was thrown into the path of a bus, which struck and killed him.

Driving, or not driving?

So it would seem that if you are not driving, in fact if you are nowhere near your vehicle, and someone comes round a bend at 60mph without being able to see far enough ahead to stop at that speed, then in fact you are driving, and it is your fault, and you are due a very hefty sentence.

Whereas if you are not driving, but are in your vehicle and actually operating part of it, and you operate part of it in such a way that your vehicle hits another vehicle, killing its rider, then you are not driving, and it is not your fault, and you are free to go.

Huh?

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I suppose the semantic difference is that in the first case something dangerous was done with the engine on and driving (the parking). The death happened as a result of driving. In the same way I could booby-trap my house, invite someone round and head for a coffee. Killing happens while I’m at Starbucks and it’s still (potentially) murder.

I don’t think that holds in the second case. The driving wasn’t dangerous. An action after driving was.

Put another way, a passenger could have committed the crime in the second case, but not the first.

Interesting; I guess you have a point. I wonder if that’s how the court saw it.

As has been raised on Twitter, though: What if the parked van had been a queue of traffic, or an ambulance attending an RTI or collecting someone from the premises? Would those drivers have been found similarly guilty?

The second case is bizarre in that Rule 239 of the Highway Code states that “you MUST ensure you do not hit anyone when you open your door”. It seems rather odd that there is, apparently, no appropriate charge that can be made for this mandatory offence.

The relevant offence would be one, under section 42(a) of the Road Traffic Act 1988 (breach of other construction and use requirements), of breaching regulation 105 of the Road Vehicles (Construction and Use) Regulations 1986. The maximum penalty is currently a £1000 fine.

I’m a little surprised that the prosecution went for manslaughter by gross negligence here. The threshold for manslaughter by unlawful and dangerous act is lower (obvious risk of harm vs obvious risk of death), and the RTA offence provides the necessary unlawful act.

Odd that the factor of not “Driving at a speed from which you can stop in the distance you can see to be clear” came in to the first case, as clearly the driver who died was, in part, the architect of his own demise.

It prompt me to reflect on the battle put up by CTC to oppose the requirement to fit rear lights on a bicycle around 70 years ago I think. Bicycles had by law to carry red reflectors facing rearwards, but not lights, and quite rightly so in the basic sense of the responsibility of road users to lookout for each other. A red rear light – and a requirement for an even more powerful red rear light when it is foggy, shift the responsibility for proceeding with care when you cannot see clearly what you are driving towards. I’ve experienced this a few times remembering a lousy drive over Shap in January 1979 when 2 lines of mostly trucks, having passed the snowplough were making way by critical mass, keeping the road clear, at 25-30 mph. Many of the semi trailers were totally blacked out as the 7 pin sockets shorted-out inundated with salt laden slush. To stop would have brought the moving mass to a stand and created on massive problem in the teeth of that blizzard. But it was pretty obvious where the truck in front was, and the ones in front of that, and (almost) everyone was very focussed on driving with appropriate separation and speed.

However when an isolated tractor unit travelling on open road loses the 7-pin, the effect is potentially more deadly. Travelling along the A1 one night – typically for me around 2 am in a car. I came up behind a ‘black mass’ a semi-trailer behind the tractor was totally unlit, and unlike many safety conscious versions, had no massive reflective signs or strips on it. Heading straight ahead, the rear lights of the tractor were completely masked by the semi-trailer. Only when the vehicle turned on a curve in the road did the lights ‘peep’ out. I pondered on perhaps a radical move for road safety, and a return to putting the onus squarely on the user of the following vehicle to watch for what is in front. Let’s have NO rear lights at all on any vehicle at night but a minimum standard for reflective marking, remember too that deer, cows and other large animals don’t have lights and have been involved in collisions where the vehicle occupants have died. I’d expect a period during which casualty rates may well rise, as those who fail to drive with appropriate observation of the road ahead and manage their speed to suit, will be involved in crashes. As this regime becomes accepted crash rates would drop and those who have failed to take this lesson on board would deliver the reduction by learning the hard way.